Making the best use of soft law (France)

Smart regulators know that according to the principle of necessity, regulation should only be used when there is no other way of achieving the policy objective. This is why the report on "le droit souple" (soft law) issued this week by the French Conseil d'Etat (CE) is going to be so useful. The CE (council of state) examines the recent development of soft law in its various forms and recommends that the government develop a doctrine on the use of this instrument to promote simple and high-quality regulation.
For the CE, soft law includes codes of conduct, best practice dissemination, the new European economic governance, self regulation by independent bodies and many other forms. These manifestations have in common that they do not impose specific obligations but aim to achieve policy objectives in a complex and uncertain society where regulation is increasingly present, often with the assistance of the end-users themselves.The CE wants to raise awareness of the growing importance and use of soft law by both public authorities and private companies in France and around the world .
Definition. Soft law includes all prescriptive instruments that meet three conditions:
• they modify or guide the behavior of their addressees while enlisting, as far as possible, their support;
• they do not per se create legal rights and obligations for their addressees;
• they feature, by their content and origin, a degree of formalization akin to legal rules.
How to make good use of it. The report offers a doctrine and operational tools, in the shape of 25 proposals for a rational use of soft law, which recommend inter alia:
• check the need for soft law on the basis of three "tests": usefulness, effectiveness and legitimacy;
• favour shorter regulatory texts by allowing regulators to detail implementation by guidance or technical standards;
• guarantee the publication including online of soft law instruments issued by public authorities;
• update the process of drafting corporate governance rules by listed companies;
• set up a public monitoring capacity for soft law generated by private actors, based on the most relevant departments.